have been admitted in the dirtrict court, the conse- 1818. The Friend schaft. a The Dos Hermanos, 2 Wheat. 76. 93. b La Virginie, 5 Rob. 98. schaft. 1818. he says it, but from the very nature of things, and The Friend- the gravitating tendency, (if the expression may be allowed,) which every person has towards his native country. Here Mr. Winn was returning to his native country, shortly after the capture, and we may safely conclude, arrived there long before the first adjudi There he continued until long after the peace, without resuming his acquired domicil in Portugal; and more than a year afterwards, we find him still residen. in his native country. He was not in transitu to regain his neutral character, like Mr. Pinto in the case of the Nereide ; but he was in transitu to regain his native hostile character. He did regain it, and became a redintegrated British subject. That the party must be in a capacity to claim at the time of adjudication, as well as entitled to restitution at the time of sailing and capture, is an elementary principle which lays at the very foundation of the law of prize. It is alluded to by Sir W. Scott, in a leading case on this subject; it is evidenced by the anciently established formula of the test affidavit, and sentence of condemnation, both of which point to the national character of the party at the time of adjudication, as an essential ingredient in determining the fate of his claim. Mr. Winn had no persona standi in judicio at the time of the first adjudication; and unless he has been re-habilitated by the subsequent intervention of peace, and restored to his capacity to claim, by a species of the jus postliminii, his native character still remains fixed upon him, and his property must be condemned by relation back to the time of the first • 9 Cranch, 388. b The Herstelder, ! Rob. 97. adjudication, to which period every thing must be referred. 5. But even the Portuguese domicil of, Mr. Winn will not avail to avert the condemnation of his property, because his native character is preserved, notwithstanding his residence and trade in Portugal. As the native domicil easily reverts, so also, it may with truth be affirmed, that it is with difficulty shaken off. Every native subject of a belligerent power, is, prima fucie, an enemy of the other belligerent. To repel this presumption, he must show, not merely that he has acquired a personal domicil in a neutral country, but that, under all the cir cumstances of the case, he is unaffected with the hostile character of his native domicil. The politi cal relations between Great Britain and Portugal, completely recognize the privileged national character of British subjects in Portugal, which is preserv ed to them, in a manner analogous to that of European merchants in the East, who are held to take their national character from the factory to which they are attached, and from the European government under whose protection they carry on their trade. Thus, also, Sir W. Scott states, in the Henrick and Maria, that British subjects resident in Portugal retain their native national character in spite of their Portuguese domicil, even in the estimation of the enemy himself, (France,) and that they exercise an active jurisdiction over their own countrymen settled there.. This peculiar immiscible character of British subjects in Portugal is strengthen a The Indian Chief, 3 Rob. 25. VOL. III. Б b? Rob. 60. 1818. The Friend chaft. 1218. The Friend schaft. ed by the circumstance of that country having been, from the earliest periods of her national existence, the ally of Great Britain; and something more than a mere common ally, as Sir W. Scott, observes, a the Flad Oyen." The case of the Danaos, cited in a note to the Nayade, in which the lords of appeal allowed a British born subject resident in the English factory at Lisbon, the benefit of a Portuguese character, so far as to legalize his trade with Holland, then at war with Ergland, but not with Portugal, must be considered as a departure from principle, and imputed to some motive of national or commercial policy, operating on the lords at the time. Certain it is, that the reasons on which Sir W. Scott grounds the opinion expressed by him, are entitled to much more weight than is the mere authority of of the lords, unsupported by any reasons whatever. This court, which is the supreme appellate prize tribunal of this country, will scrutinize carefully all the precedents settled in the British prize courts, (since the United States ceased to be a portion of the British empire,) and will regard rather the reason than the authority on which they are funded. Trace the treaties between Great Britain and Portugal, and it will be found that they impress something like a provincial dependent on Portugal, and an independent character on British subjects resident in that country. It is to the lights of history that we must resort to account for compacts so singularly unequal. Before the subjugation of Portugal by Spain, the an cient Portuguese kings granted special immunities to English merchants settled in their dominions. The want of capital in a poor and comparatively barbarous country, made it necessary to encourage the establishment of foreign merchants in factories, which were essential to their protection, on account of the difference of language, manners, religion, and laws, almost (if not quite) as great as between Christendom and the Countries of the East. On the restoration of the monarchy by the house of Braganza, in 1640, John IV. was supported by Charles I. of England, who was the first prince that acknowledg ed the new Portuguese monarch, and entered into a treaty with him. Under the English Commonwealth, this treaty was renewed by Oliver Cromwell, whose energy in maintaining the foreign influence and commercial interests of his country is so well known. Charles II married the Infanta of Portugal; confirmed all other treaties; and made a new and perpetual one with Alfonzo VI. Under his mediation. and guarantee, Spain acknowledged the independ ence of Portugal; which Great Britain has since constantly maintained, by succouring Portugal against her enemies. In return for a friendship so ancient, so unalterable, and so beneficial, Portugal has lavished upon the subjects of Great Britain the most precious commercial privileges; and for them has even relaxed her commercial monopoly, and opened to them the sanctum sanctorum of her possessions in the two Indies. These privileges have been uniform a 2 Posthelwaite's _Dict. of Trade and Commerce, art. Treaties. 1818. The Friendschaft. |